Judge dismisses DWI indictment citing errors, double jeopardy

CANTON  St. Lawrence County Judge Jerome J. Richards has dismissed a driving while intoxicated indictment against a Gouverneur man, sending the case of Mark W. McIntosh back to Fowler Town Court after finding that actions taken by the local court and the district attorneys office subjected Mr. McIntosh to double jeopardy and denial of due process.

St. Lawrence County District Attorney Nicole M. Duvé declined comment on the judges order, saying that she could not speak to it substantively while Mr. McIntoshs case remains active.

Public Defender Stephen D. Button, who filed the motion to which Judge Richards responded, also declined comment. He did confirm that Mr. McIntosh is to appear again in Fowler Town Court on May 1.

There, according to Judge Richardss ruling, Mr. McIntosh will stand before the court restored to his original status as of Oct. 3, when he accepted a plea agreement offered by Assistant District Attorney Andrew Botts and pleaded guilty to a misdemeanor count of DWI to resolve all charges.

Disagreement over the validity of that plea lay at the heart of a three-way legal tussle between Town Court, Ms. Duvés office and Mr. Buttons office.

Mr. McIntosh, 42, of 233 Doane Road, was arrested Sept. 8 following a traffic stop on Route 58 in Fowler, after which his blood alcohol content was measured at 0.18 percent, state police said. Under state law, a BAC of 0.08 percent or more constitutes intoxication. Aggravated DWI is charged when the BAC is 0.18 percent or more.

Based on a prior conviction, Mr. McIntosh also was charged with a felony. But, Judge Richards noted, during plea discussions Oct. 3 there was no explicit mention of the pending felony complaint, nor does the audiotape or transcript reflect whether or not the felony complaint was at that time physically in the courts file which the parties were reviewing during the plea proceeding.

On Oct. 10, documents show, Fowler Town Justice Paul M. Lamson emailed an assistant district attorney and an assistant public defender, writing that when reviewing the file while ordering the (presentence investigation), I found a felony complaint that had been given to the court. Somehow I missed it in the file. Mr. McIntosh was originally arraigned on the felony, but I never caught it when we built the case file later.

On Oct. 12, Assistant District Attorney Joshua HaberkornHalm emailed the justice advising him to vacate the illegal plea, which he maintained was in violation of criminal procedure law requiring a motion from the district attorney to reduce the felony complaint to a misdemeanor.

The justice replied that he would do so.

Nothing in the file states the legal reason why the court vacated the plea, Judge Richards observed.

The local court denied defendant basic due process in vacating the guilty plea in response to the prosecutors email request, without prior notice to the defense and an opportunity to be heard, he concluded.

The DAs office then sent Mr. McIntoshs case to a grand jury, and on Dec. 6 he was indicted on one count of aggravated DWI and two counts of DWI.

And yet, Judge Richards noted, as late as Dec. 5, Town Court advised the defense that no order had been entered vacating the Oct. 3 plea, but that one would be forthcoming.

Town Courts failure to properly vacate the plea, combined with its failure to file a written order confirming that action with superior court prior to the indictment, meant that there was in place an apparently valid misdemeanor plea at the time of the indictment, creating a double jeopardy situation, Judge Richards wrote.

The only way to correct these several errors is to dismiss the indictment and vacate the order vacating the plea, the judge concluded, sending the case back to Town Court where questions about the original plea and sentencing commitments can be addressed.

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